The term "distinctive name" means the trade description by which an article of food is known to the public. It also includes generic names, such as coffee, tea, flour, sugar, lemon juice, chocolate, vanilla, as well as fanciful or arbitrary names which a manufacturer puts upon the market, and which are, in fact, trade-mark names. If an article be not coffee, then it can not be labeled "coffee, and so cane syrup can not be labeled "maple syrup," or cotton-seed oil "olive oil," if it be not the genuine article; nor can a Brazilian coffee be labeled "Mocha" coffee. Nor can a foreign name be used on a domestic article. Examples of this can be found with reference to Roquefort cheese, which is a foreign well-known cheese, and to brand a cheese with the word "Roquefort" is to convey the meaning that it is of foreign manufacture-an imported cheese. There is no objection, however, to a domestic cheese made in the type or style of Roquefort cheese being labeled "Roquefort Style" or "Roquefort Type," but the word "type" or "style" must be so plainly printed on the label as to prevent its being overlooked by the purchaser.3 § 267. Use of Different Kinds of Type to Deceive Purchasers. It is not an uncommon practice of manufacturers to comply with all the requirements concerning labels so far as to make an accurate statement of the contents of the package or can, but to use different kinds of type, so as to attract the attention of the purchaser to the inferior or adulterated qualities of the article. Such labeling is considered to be a misbranding. A few illustrations may be given. Thus, a cheese was branded, "Blue Ribbon Brand Neufchatel Style Cheese." The words "Neufchatel Cheese" were in large type, and the word "Style" in small, inconspicuous type. This was done for the purpose of deceiving and misleading the purchaser into the belief that the cheese was a well-known for 2 As "Cereal Coffee." F. I. D. 50. 3 "The manufacturer here would have fully obeyed the statute if he had put nothing on his product but the name Corno Horse and Mule Feed." N. J. 990. eign product of superior quality, when in fact it was a domestic article, as the label truthfully indicated; but the branding or labeling was such as to mislead the average purchaser. It was adjudged that the cheese was misbranded.1 A similar ruling was made where a can was labeled "Broiled California Mackerel-Pilchard or Sardinia Caeruleus." The product in the can was not "California Mackerel," but was California sardines; and the words "Pilchard or Sardinia Caerulus" were printed in very small, insignificant letters, noticeable only upon close inspection. This was considered a misbranding. So where a product was labeled "Currant Jelly" in large letters, followed by the words "Blended with Apple and Other Fruit Juices," in such small letters that it was calculated to mislead and deceive the public into the belief that the product was in fact currant jelly when it was only a mixture, as the words in small type indicated. It was held that the product was mislabeled.3 § 268. Waste Material in Foods. The regulations provide that: "Where an article is made up of refuse materials, fragments or trimmings, the use of the name of the substance from which they are derived, unless accompanied by a statement to that effect, shall be deemed a misbranding. Packages of such materials may be labeled 'pieces,' 'stems,' 'trimmings,' or with some other appellation." If the article of food is made of such materials, and it is not unfit for food and contains no added substance which is considered deleterious, it may be sold if labeled in accordance with this regulation. Such an article of food must not be passed off for an article better than it really is. But if an article of food is made out of pieces, stems or trimmings that are unfit for food, then the proper labeling of it will not save it from the charge of adulteration. 1 N. J. 291; N. J. 565; N. J. 341. 2 N. J. 365. 8 N. J. 415. See also N. J. 811, N. J. 835. 1 Regulation 26. § 269. "Manufactured for," "Prepared for," "Distributed by," Used on Labels. "Numerous inquiries are received relative to the marking of products not manufactured by the party in whose name they are sold. The following are representative: 'We prepare products on the special prescription of the customer, shipping the same to him in barrels to be rebottled, labeled, and packed for the market. Many of our customers are asking how the law affects this busi ness. 'Manufacturing chemists ship goods to us, made according to our formula; we bottle and label the goods. Should our name appear on the labels as manufacturers or distributers? All of our remedies are given a distinctive name. 'If we put up a cough remedy for John Smith & Co., would it be sufficient to label it "Sold by," or must it be labeled "Prepared for John Smith & Co."? 'Will it be necessary to have appear on the label our name as the actual manufacturer of the product or will it only be necessary that the words "Prepared only by" be cut out of the label and instead the words "Prepared for" be printed thereon, just before the name of the Blank Chemical Company? You will, we think, appreciate that, as the preparation is made over their private formula and for their account, we acting merely as the agent for this manufacturer, we should not care to have our name attached to it or to any other preparation of this kind put out by another concern and should be obliged to discontinue the business entirely should it be required that our name appear on the labels for this preparation. 'I would respectfully call your attention to the injustice the enforcement of Regulation 18 (a) of Circular 21 will be to manufacturers of plain unmixed food products like sweet corn or tomatoes. This regulation enables jobbers to demand that their names be placed on the labels to the exclusion of that of the manufacturer and to enforce their demand. The remedy is a simple one and seems to be wholly within the intent of the law, viz., require that the name of manufacturer and place of manufacture be put upon every package offered for sale, and that it be held misbranded if this is not the conspicuous feature of all labels on all packages of food, whether plain, mixed, or compounded.' "In considering the above inquiries it should be borne in mind that the law forbids all forms of misrepresentation. Food mixtures and compounds having 'distinctive names' must in all cases bear the name of the place of manufacture. No drug products, whether simple, mixed or compounded, with or without 'distinctive names,' are required to bear the name of the manufacturer or producer, or the place where manufactured or produced, except when sold under proper name brands, i. e., brands in which both the given name and the surname are used. All food and drug products sold under such proper name brands should bear the name of the manufacturer or producer and the place of manufacture or production. In all cases where the name of party or place is stated upon the label, such name must be the true name of the actual manufacturer, producer or packer, and the true name of the place where the article was manufactured, produced or packed. "If, for trade reasons, when not required by law, a name or a place be given upon the label of foods or drugs manufactured or packed for any person, firm or corporation by another person, firm or corporation, one of two forms of labels is allowed, viz: "(a) The name of the actual manufacturer or packer and the place where the goods were actually manufactured or packed may be given; or "(b) The name of the person, firm or corporation for whom the goods are manufactured or packed, or by whom they are distributed, may be given, if preceded by the words 'prepared for,' 'manufactured for,' 'distributed by,' etc. The phrase 'sold by' is not satisfactory. The approved phrase shall be set in type not smaller than eight-point (brevier) caps. "This rule holds even if the formula or prescription be furnished or owned by the parties for whom the goods are manufactured or packed. "Foods and drugs repackaged within a State and sold only within that State are not subject to the Federal law; but repackaged foods or drugs which enter interstate commerce, or which are sold in the District of Columbia or in the Territories, are subject to the law, and should be labeled in accordance with this decision."" 1 F. I. D. 68. See also N. J. 990. § 270. Imitations of Foods-Intent-Mistake. The statute expressly declares that in case of food an article shall be deemed misbranded "if it be an imitation of or offered for sale under the distinctive name of another article.""1 This prohibition applies to all foods covered by trade marks under fanciful names that are imitations of other foods. But imitations of foods may be sold if they are properly labeled or branded as such. They must be labeled, branded or tagged so as to plainly indicate that they are imitations, and the word "imitation" must be plainly stated on the package in which it is offered for sale. Regulation 21 declares that the term "imitation applies to any mixture or compound which is a counterfeit or fraudulent simulation of any article of food or drug." Regulation 22 provides as follows. "It is prohibited to sell or offer for sale a food or drug product bearing no label upon the package or no descriptive matter whatever connected with it, either by design, device or otherwise, if said product be an imitation of or offered for sale under the name of another article." Notwithstanding an article is properly branded, yet if it be not wholesome or free from deleterious ingredients, capable of or intended for use in the same way as the substance of which it is an imitation, and as a substitute for such substance, it can not be put on the market. "Now," said a court in its charge to the jury, "there is another question to which your attention must be directed by the court, and that is the question of intent—as to whether the defendant intentionally committed the offense charged in the information. Now, gentlemen, in most criminal trials it is necessary for the government to establish beyond a reasonable doubt that the accused intended to violate the statute, and the person charged with crime should not be convicted if it appears that the offense was due to a mistake or inadvertence-that is to say, absence of intent to violate the statute. Usually in criminal trials the intent is presumed from the facts and circumstances, and follows as a necessary consequence of the act; hence the defendants, if they knew 1 Section 8. PURE FOOD-22. |